April 15, 2014

The Tragicomedy of the 9/11 Trial
A report from Guantanamo Bay

GUANTANAMO BAY NAVY BASE, CUBA — Frustration gripped Camp Justice this week. By Tuesday morning, Army Brig. Gen. Mark Martins, chief prosecutor for the 9/11 trials, sat glowering in the courtroom, drumming his fingertips together in steeple-position as we awaited the judge’s appearance. The five defense teams were seething, reporters and observers were incredulous, and some victim families were furious.

“We came here four years ago, and we’re in exactly the same place,” said Lorraine Arias-Beliveau. Lorraine’s brother, Adam P. Arias, escaped from the 84th floor of the South Tower after warning others. He made it to the street, only to be killed when the building collapsed.

More than a dozen years later, and eleven since the arrest of accused mastermind Khalid Shaikh Mohammed (KSM), his trial with the four co-defendants housed with him in mysterious Camp 7 has still failed to begin. The pre-trial process limps along glacially. Over the past two years, the court has convened ten times for approximately 35 days—or 3.7 days every ten weeks, on average. The February session was cancelled, so it’s been four months since the last three-day session.

There were five prominent exceptions to the sour mood: KSM and his co-defendants chatted merrily amongst themselves before the proceedings Monday, and with their counsel afterward. They get two hours of recreation time a day, in rotating pairs, so each man gets to see one peer a day, but it’s the first time since December they have reunited in a larger group. And by lunch Tuesday, they had fresh reason to celebrate.

Final preparations for the hearings ramped up Saturday with a hopeful mood, particularly among those of us new to the process. The veterans were decidedly less optimistic—for good reason, it turned out.

Saturday morning, a disparate group of 116 people massed before dawn near the gates of Andrews Air Force Base outside Washington, D.C., to board a military-chartered Delta Airbus 319, bound for these 45 square miles of America in southeastern Cuba. Individual flight costs vary, but average $90,000 each way. Press pay $400 round trip, everyone else rides free. Press and NGOs generally are housed in giant air-conditioned army tents with twin beds and nearby tent-latrines and tent-showers. Most others stay in townhouses.

The contingent included prominent lawyers, Pentagon spokesmen, paralegals, linguists, and NGO members—mostly law students on research projects, plus representatives from organizations like the ACLU. The media constituted one of the smallest contingents. The dwindling press corps included just ten people this time: one wire service, two U.S. and one British newspaper, no TV networks, a French documentary film team, two European magazines, a sketch artist, and me.

Monday morning, we were separated from the proceedings by three layers of soundproof, bulletproof glass. Audio is piped in with a 40-second delay, so the judge, Army Col. James Pohl, can hit the mute button anytime classified material arises. (In January 2013, Pohl discovered that “some external body” mysteriously exercised the mute function he had been told only he controlled. It has since been widely speculated that the CIA is listening in.)

Observers entered first, Monday: press and NGOs on the left of a rear chamber, ten representatives from the victims’ families to the right—the prosecution side—with a curtain they could pull for privacy, but have chosen not to this week. A single security specialist set to work, meticulously wiping down each defendant chair, probing every flap and fold in the cushions and seat-backs. Security officers in army uniforms lined the wall, wearing standard velcro-backed cloth name-strips on their chests reading “Escort,” “Internal Security” or “Internal Security NCOIC” (Non Commissioned Officer In Charge).

KSM entered, accompanied by several escorts wearing black surgical gloves. The gloves are a protective measure added after other prisoners employed a tactic known as “splashing,” which a military spokesman described it as “a toxic mix of bodily fluids” the prisoners prepared and hurled at their captors. The gloves also protect against spitting and blood-born contagions in the event of an aggressive struggle. The other defendants followed, one at a time, following the same procedure. The chains affixed to the floor below their chairs were not deployed. They have been used, rarely, to shackle the ankle of an unruly prisoner. The plan is to leave them hidden under the tables unless necessary, to avoid prejudicing the future jurors.

KSM, who, according to U.S. military records, celebrated his forty-ninth birthday Monday, looked considerably older—though he has trimmed down since last spring, when he had developed quite a pot belly, according to veteran observers. He wore an outdated U.S. Army BDU field jacket (a toasty insulated winter coat) in a woodland camouflage pattern over his traditional white tribal desert gown and flowing makeshift turban. It was 86 degrees with 84 percent humidity here Monday.

The next two defendants seated directly behind him made a similar fashion statement, in DCU coats (Desert Camouflage Uniform), which replaced the BDU and preceded the current ACU (Army Combat Uniform). Mountains of legal motions last year led to Judge Pohl’s decision that they could wear military garb so long as it wasn’t current U.S. issue—hence the outdated American uniforms. Presumably, the men are making a symbolic statement that they were military combatants, hence POWs, hence subject to the full protections of the Geneva Conventions, which they contend have been violated. They also seem to be reaching for the Che Guevara effect. They are warriors. Huah.

Each defendant came with a large, clear plastic box or two, containing a hefty stack of files, prayer mat, and sundry items like dictionary and what appeared to be changes of clothes. KSM carried what looked like a Koran. They each wore a different headdress, and several accessorized with sneakers, including at least one pair of Nikes. All wore beards, most notably a big, bushy ocher beard at least eight inches long on KSM.

When the bailiff commanded “all rise” for the judge’s entrance, the defendants all declined.

Just a few minutes into Monday’s proceedings, James Harrington, attorney for defendant Ramzi bin al Shibh, announced an emergency motion had been filed at 10 p.m. Sunday night, just eleven hours earlier. He revealed that eight days earlier, two FBI agents had appeared at the home of his team’s DSO—which stands for Defense Security Officer, a civilian who assists the defense in handling classified evidence. The agents questioned him, obtained his signature on two non-disclosure forms, and asked to return for more questions in the future. Harrington described his DSO as a senior advisor privy to intimate legal strategies, privileged attorney-client communication and unlimited access to their files.

The emergency motion ran about 25 pages, but was kept secret. Defense attorneys argued that both the wording of the FBI’s agreement with the DSO—also secret—and the request to continue meeting with the DSO, suggest an intent to make the DSO a CI, or Confidential Informant—in spy-novel parlance, a mole. The motion asked the judge to launch an investigation, and to appoint another set of five independent lawyers to evaluate the impact of the FBI move, and advise the five defendants on whether or not to retain the sprawling legal teams representing them for years. Or worst case, start over.

The restart seems unlikely, but even if the whole matter turns out to be trivial, the specter and investigation could easily knot the case up again for months in yet another diversion.

The defendants appeared unfazed by the development. The FBI issue forced the court into recess Monday morning, and in an unusual move, the judge granted the defendants permission to effectively use the courtroom as a giant makeshift conference room for the next two-plus hours. Four of the five defendants bantered with their legal teams, laughing and smiling throughout the morning.

KSM conducted his powwow on the floor, with half a dozen lawyers and assistants seated on the carpet behind his table. Midway through, a female advisor wrapped a hijab around her head and shoulders to approach the gathering and plopped down among them. Cheryl Bormann, attorney for defendant Walid bin Attash, covered up with a full-length abaya down to her shins throughout the session in deference to her client, paired with dazzling white pumps with gold embellishments and four-inch heels.

As the defendants prepared to leave, their escorts refitted their black gloves and rose to form a protective human wall.

Court reconvened Tuesday morning, with a series of arguments from both sides. Each round of any dispute must be run five times, with each defense team responding in turn. Unfortunately, it became clear that no one in the proceedings had asked the DSO much about what the FBI had asked him, or how he had responded. Attorneys upped the language in court Tuesday. Walter Ruiz, attorney for Mustafa Ahmed Adam al Hawsawi, expressed fears “that defense personnel be enlisted as informants or as spies to assist the government.”

Harrington said that because the DSO appeared to be under FBI investigation, he limited his questions to protect the man. (Had the DSO been his client, he said would have advised him not to answer.) What Harrington did learn was that the FBI agents posed mostly open-ended questions, not revealing their primary intentions, though they notably asked about KSM’s manifesto "Invitation to Happiness," which was leaked in January to The Huffington Post and UK’s Channel 4.

It was clear by Tuesday morning that unless someone in court was withholding, no one in the room knew if the FBI inquiry was a brief, routine, and poorly considered questioning of one man or what KSM’s Attorney David Nevin referred to in court Tuesday as “this attempt by the FBI to penetrate Mr. Harrington's team.”

The judge ordered a “comfort break” around 10:40. Outside, Donald Arias fumed. His brother Adam’s been dead over a decade, and these five defendants are no closer to justice, he said. His parents are elderly, and Adam’s widow Margit has stage-four cancer. “Our family’s dying before these guys.”

It got worse. When court reconvened a few minutes later, Judge Pohl ordered an investigation. He gave the defense until Wednesday evening to produce a witness list. “We won't meet tomorrow, but we may meet on Thursday, depending where we are at,” he said. That’s the last day of the session. None of the key witnesses identified by the defense are on the island.

At best, there will be a single day to advance the case this quarter—and much or all of it will likely be consumed by this extraneous issue. And then the new investigation kicks off. It could stall the proceedings for months.